Submitted: August 16, 2017
REPORT AND RECOMMENDATION THAT DEFENDANT'S MOTION FOR
POSTCONVICTION RELIEF SHOULD BE SUMMARILY DISMISSED.
A.T. vanAmerongen, Esquire, Deputy Attorney General,
Department of Justice, Wilmington, Delaware, Attorney for the
Brunhammer, Howard R. Young Correctional Center, Wilmington,
Delaware, pro se.
O. Turner, Esquire.
M. PARKER, Commissioner.
22nd day of September 2017, upon consideration of
Defendant's Motion for Postconviction Relief, it appears
to the Court that:
October 2010, Defendant Paul Brunhammer was indicted for two
counts of Rape in the Second Degree and one count of Sexual
Solicitation of a Child. At the time of his indictment,
Defendant was incarcerated in the State of New Jersey,
serving a seven-year sentence imposed in September
August 2015, while still serving the New Jersey sentence,
Defendant moved to dismiss the indictment on the grounds that
the State's delay in lodging the detainer against him was
a denial of his right to a speedy trial. By Order dated
December 7, 2015, the Superior Court denied Defendant's
motion to dismiss. The Superior Court reasoned that although
five years had elapsed since Defendant's indictment, the
delay was solely attributable to Defendant's
incarceration in New Jersey. The Superior Court further held
that although Defendant claimed to have only recently learned
of Delaware's indictment, he had not articulated actual
prejudice caused by the delay.
December 14, 2015, Defendant filed a motion for
reconsideration of his speedy trial motion. The motion for
reconsideration was denied by the Superior Court by Order
dated January 25, 2016.
Defendant appealed the Superior Court's decision to the
Delaware Supreme Court. His appeal was dismissed as an
impermissible interlocutory appeal in a criminal
January 20, 2016, the end of the incarcerative portion of
Defendant's New Jersey sentence, Defendant was returned
to Delaware to face the charges in the 2010
his return, Defendant was appointed defense counsel and
pleaded not guilty to the charges in the indictment.
During pretrial proceedings, the Superior Court twice granted
requests to continue the trial to give Defendant and his
counsel more time to review discovery.
Defendant's final case review on May 2, 2016, he pled
guilty to Rape in the Third Degree, a lesser-included offense
of Rape in the Second Degree. In exchange for Defendant's
plea, the State agreed to enter a nolle prosequi on
the other counts in the indictment and to recommend a
sentence of no more than ten years of incarceration.
Defendant had proceeded to trial, and had been convicted of
all three charges of the indictment, two counts of Rape in
the Second Degree and one count of Sexual Solicitation of a
Child, Defendant faced a minimum mandatory sentence of four
years of incarceration and a maximum sentence of 65 years of
July 15, 2016, the Superior Court sentenced Defendant to ten
years of unsuspended Level V incarceration followed by two
years of Level III probation.
Defendant filed a direct appeal to the Delaware Supreme
Court. On March 13, 2017, the Delaware Supreme Court affirmed
the judgment of the Superior Court. On direct appeal, Defendant
did not challenge the validity of his guilty plea. Rather,
Defendant sought to have his indictment dismissed and his
sentence vacated on the grounds that the State's delay in
filing the detainer led to a denial of his right to a speedy
trial and other related claims.
direct appeal, the Delaware Supreme Court concluded that
Defendant had entered into the plea knowingly, intelligently
and voluntarily. The Delaware Supreme Court ruled that as a
result of his guilty plea, Defendant waived his right to
challenge any error occurring before the entry of the plea,
even those of constitutional dimensions. The Delaware
Supreme Court held that Defendant waived his right to appeal
his speedy trial claims when he pled guilty to the charge of
rape in the third degree. The Delaware Supreme Court
declined to consider Defendant's ineffective assistance
of counsel claim on direct appeal.
August 18, 2016, and again on June 1, 2017, Defendant filed a
motion for modification of sentence in the Superior
Court. By Order dated July 20, 2017, the
Superior Court denied Defendant's motion for modification
of sentence. The court stated that the sentence was imposed
pursuant to a plea agreement. The court further stated that
the sentence was appropriate for all the reasons stated at
the time of sentencing.
way of background, the victim was a nine-year-old girl. Her
mother had been dating Defendant. The cause of the break up
was that Defendant told the victim's mother that he
molested a ten-year-old boy in New Jersey, who was his
ex-girlfriend's son. The victim's mother contacted
New Jersey authorities which resulted in Defendant's
arrest and conviction in New Jersey. Defendant served a
seven-year Level V sentence in New Jersey for aggravated
sexual assault. Defendant was incarcerated in New Jersey from
September 21, 2010 to January 20, 2016.
May 15, 2010, police officers responded to the victim's
mother's residence in Newark, Delaware in reference to a
sexual abuse complaint involving her nine-year-old daughter.
Prior to contacting the police, the victim's mother
received a telephone call from her ex-husband, who told her
about the sexual abuse. Apparently, the victim was staying at
her father's residence for a weekend visitation when she
disclosed to her father that sometime in August 2009, she was
alone with Defendant inside her mother's residence in
Newark. Defendant was watching her while her mother attended
During this time, Defendant began to describe to the victim
in graphic detail about sex acts between him and the
victim's mother. Defendant then showed the victim a
vibrator and described its use. Later that night, the victim,
wearing a nightgown, was lying on the floor on her stomach
watching television in the living room. Defendant snuck up
behind her and placed his finger inside her buttocks. The
victim questioned Defendant's actions and told him that
she hated him.
May 2, 2016, Defendant pled guilty to the lesser included
offense of Rape in the Third Degree.
During the plea colloquy, Defendant admitted that he
intentionally engaged in sexual penetration with the victim
causing serious mental or emotional injury.
sentencing on July 15, 2016, Defendant stated:
Your Honor, there's not a word I can say that can make
what I did go away, that can make this situation better.
There's nothing that I can say that would make everything
better. I don't even profess to know what the victim in
this case is going through, Your Honor. .. I ended up
becoming the very same person that- - I became the very
person that I hated, which was my father.
There's probably not a word that [the
victim's mother] has said about me that's not true. I
was a monster at that point... I didn't get help
when I needed help until I had already hurt somebody. . .
This is not something I want to happen again. It's
detestable behavior. And I'm disgusted with the fact that
I'm the one who perpetrated this behavior.
Defendant filed a motion for modification of sentence in
August 18, 2016. One of the grounds Defendant asserted in
support of that motion was that he had accepted
responsibility. Defendant stated that he had "accepted a
plea agreement instead of pursuing a trial, accepted his
responsibility and demonstrated remorse."
RULE 61 MOTION
Defendant filed the subject Rule 61 motion on July 17, 2017,
which he supplemented on August 16, 2017. In the
subject motion, Defendant has raised a number of claims which
all fall into two categories. First, Defendant claims that
the strength of the State's case should have been tested.
Defendant claims that the State's witnesses should have
been questioned as to their inconsistent statements and
motives. Defendant further claims that he was deprived of the
right to present witnesses in his own defense. Defendant
claims that the failure to test the State's case and to
present witnesses in his defense was attributed to his
counsel's ineffective assistance. Second, Defendant
contends that he was deprived of the right to a speedy trial
and that his charges should be dismissed. Defendant also
claims that his deprivation of his right to a speedy trial
was attributable to his counsel's ineffective assistance.
relief that Defendant is seeking in the subject Rule 61
motion is not for the plea to be vacated and for him to
proceed to trial but rather for the plea to vacated and for
all the charges to be dismissed.
it plainly appears from the motion for postconviction relief
and the record of prior proceedings in the case that the
movant is not entitled to relief, the court may enter an
order for its ...